335 Ga. App. 70
Ga. Ct. App.2015Background
- NKN Enterprises and Billingsley repeatedly challenged BB&T's foreclosures across multiple forums beginning in 2011.
- BB&T initiated foreclosures in August 2011; a sale was scheduled for October 4, 2011, but bankruptcy was filed on October 3, 2011.
- Bankruptcy petitions were dismissed (2011 and 2012); a second petition was filed August 31, 2012 and dismissed in March 2013.
- BB&T renewed foreclosure efforts in August 2013; Fulton County Action filed August 30, 2013 alleging wrongful foreclosure and related claims, later dismissed for want of prosecution in January 2014.
- Appellants appealed the dismissal, the appeal was withdrawn in June 2014, and foreclosure proceedings continued with a sale notice for October 2014.
- In October 2014, appellants filed a DeKalb County suit reasserting similar claims; trial court granted judgment on the pleadings in favor of appellees, which this Court affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly granted judgment on the pleadings | NKN argues triable issues exist and argues improper consideration of uncertified exhibits | BB&T contends pleadings show no viable cause of action and exhibits may be considered | affirmed the trial court's judgment on the pleadings |
Key Cases Cited
- Prinits v. Bankers Life Ins. Co., 256 Ga. App. 266 (2002) (trial court may rely on pleadings and incorporated exhibits)
- Trop, Inc. v. City of Brookhaven, 296 Ga. 85 (2014) (trial court not required to accept legal conclusions)
- Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88 (2010) (allegations denied by movant treated as false on judgment on pleadings)
- Tronitec, Inc. v. Shealy, 249 Ga. App. 442 (2001) (waiver of objections raised on appeal when not raised in trial court)
- Jones v. State, 308 Ga. App. 99 (2011) (best evidence rule and certification issues waivable; need timely objection)